


/w 



LD212C? 
,A)6 



REPORT 



COMMITTEE OF THE OVERSEERS 



&?nvbavtr College, 



wmm wmw%n^^% 



OB THE 



RESIDENT IKSTRUCTERS. 



JANUARY 6, 1825, 






/{A «/ ? 



U J) °L \ % 
-h \G 



h~***- { t (h //vr 



g/>WW /^C/r , J/VC, 2- «-/ / "" 






The Committee, to whom was referred a Memorial of 
the Resident Instructers in the University beg leave to 

REPORT, 

That in this Memorial, the Instructers state that a 
document, which is annexed to it, and which was de- 
signed to prove that by the Charter of the Univer- 
sity, the Fellows are required to be Resident In- 
structers, was presented by them in April last to 
the Corporation, who declined acting on it, upon the 
ground that if the claim set up in it was valid, the 
Corporation was illegally constituted, and its acts 
were void. The force of this*objection is admitted 
by the Memorialists, who had, as it appears, antici- 
pated it, but hoped that the Corporation would ap- 
ply some remedy, which if not in a precisely legal 
form, might yet be effectual and satisfactory. Dis- 
appointed in this expectation, they now bring their 
claim before this Board and request it to restore the 
Institution to what they esteem the only form con- 
sistent with its Charter ; submitting at the same time 
the document referred to, and praying that they 
may have an opportunity of explaining and defend- 
ing it, when it comes to be weighed and acted upon. 
This document relates to the mode, in which ac- 
cording to the Charter of the Institution, tfie Corpo? 



ration of Harvard College ought, of right, be con- 
stituted. The Charter dated the thirty-first day of 
May, A. D. 1650, provides that Harvard College, 
in Cambridge, shall be a Corporation, consisting of 
seven persons, a President, five Fellows and a Trea- 
surer ; names the individuals who shall first consti- 
tute this body, describing them as, " all inhabitants 
in the Bay," points out the manner in which their 
successors shall be elected, and sets forth their cor- 
porate powers and privileges. 

It is contended by the Memorialists that the term 
Fellow, used in the Charter, imported a person resi- 
dent at the College, and actually engaged there in 
carrying on the duties of instruction and government, 
and receiving a stipend from its revenues ; and se- 
veral statements and arguments are advanced by 
them in support of this position. They allege that 
this is the meaning of the term in the English Uni- 
versities, and particularly in Cambridge, where 
many of the founders of our College were educated. 
They represent that the Fellows of the College were 
Resident Instructers at the commencement of the 
Institution, and that one or more of the Instructers 
have been members of the Corporation, excepting 
in the interval between 1793 and 1800, from the 
earliest period to the year 1806, and that they were 
a majority of the five Fellows about half the time 
during the century preceding that date. They pro- 
duce a resolution of both branches of the Legisla- 



ture in the year 1722, declaring, "that it was the 
intent of the college charter, that the Tutors of the 
said college, or such as have the instruction and go- 
vernment of the students, should be the Fellows and 
members of the Corporation of the said College, pro- 
vided they exceed not five in number ;" to which 
resolution however, the Governor refused to give 
any other than a qualified and conditional assent; 
an assent deemed sufficient to give it the force of 
law by the Memorialists, but not by your Commit- 
tee, nor by the Legislature at the time. The House 
of Representatives unanimously passed the same re- 
solution again the next year, refusing to hear the 
Corporation, but the Council having granted them a 
hearing, rejected it. After some remarks on the 
expediency of the change proposed by them in the 
actu 1 organization of the College, the Memorialists 
conclude by " preferring, as a matter of chartered 
right, the claim of the Resident Instructers to be 
elected to vacancies in the Board of the President 
and Fellows of the College. 

In compliance with the request contained in the 
Memor al, the Committee appointed a day for meet- 
ing at Cambridge, to hear whatever the Memorial- 
ists might offer in support or explanation of their 
claim, and gave notice of this appointment to them 
and to the Corporation. Before the day appointed, 
however, the Committee were informed that at a 
meeting of the Resident Instructers, it had been una- 



nimously voted, " that the Memorial itself contained 
all the statements and arguments on the subject of 
it, which they were desirous of bringing before the 
Committee, and that it was not their wish to be ad- 
mitted to any hearing before the Committee." In 
consequence of this communication the meeting was 
not holden at Cambridge as proposed. 

In the opinion of the Committee, it is an obvious 
objection to the claim, as stated in the Memorial that 
these Memorialists were appointed to the offices, on 
which alone their claim is founded, by the official 
act of that body, all whose acts the claim itself would 
render nugatory. It has however been suggested 
by one of the memorialists, that they did not mean 
to claim any exclusive right, or to pretend that 
they have any other than the common and undispu- 
ted right of all citizens, that of being eligible ; but 
only to maintain that though all inhabitants of Mas- 
sachusetts are equally eligible, yet those who have 
been elected, are bound to reside at the College. It 
is difficult to put this construction on the Memorial, 
which is throughout, in form and in substance, a claim 
of right. But whatever construction be put upon 
it, the following considerations, are respectfully sub- 
mitted as pertinent, and in the opinion of the Com- 
mitte, conclusive. 

The only express provision in the Charter, which 
is asserted by the Me moralists to impose the ob- 
ligation of residence at the College on the Members 



of the Corporation, is the application to them of 
the term Fellow. Now to ascribe this effect to the 
word, is to give it an operation, which it is not 
known ever to have when used in the same con- 
nexion, as it often is, in the charters of other Col- 
leges and Corporations. It is certain that the term 
has not, of itself, this effect in the charters or sta- 
tutes of the Colleges in either of the English Uni- 
versities. In both, there are Fellows, who are re- 
quired to travel, and many Fellows of Colleges never 
go thither at all. 

With regard to the usage in Harvard College, 
we find from the records that the Corporation con- 
sisted entirely of non-residents, with the exception 
of the President, from 1793 to 1800, and from 
1806 to this time; and that ever since 1673, which 
is as far back as the names of its members can be 
regularly traced, it has always contained two or 
more non-residents, the other members being resi- 
dent Instructers ; and it does not appear that a 
different practice existed previously. It is manifest 
that this usage, while it is perfectly consistent with 
the unquestioned right of the resident Instructers to 
be eligible to this office, in common with other citi- 
zens of the State ; is totally repugnant to the asser- 
tion that they are exclusively eligible, or that non- 
residence is a forfeiture of the office ; for to support 
either of these positions, it is not enough to shew 
that the Instructers may form a part of the Cor- 



8 

poration, but it must be shewn that not one non-re- 
sident can be a member of it. The Committee 
are unable to ascertain who were the members at 
any time before the year 1673, excepting from the 
Charter of 1650 and that of 1672, in which they 
are named. The Memorial asserts that all the Fel- 
lows named in the Charter of 1650 were resident 
Instructers at that time, but no satisfactory evidence 
of this has been produced. Of those named in the 
Charter of 1672, three were settled Clergymen, 
and one of them, Samuel Danforth, who alone is 
described by the addition of " a Fellow of the Col- 
lege," was the only person then living, who had 
been named in the former Charter, and he then was 
and had been ever since 1650, the -Minister of the 
Church in Roxbury. There is not only no evidence 
that this Charter designedly and avowedly departed 
from the former in relation to the residence of the 
members of the Corporation, but strong evidence 
to the contrary, inasmuch as the appointment of the 
persons incorporated to be " the Fellows" which is 
supposed to require their residence at the College 
in the former Charter, is repeated in the latter. 
Neither have the Committee discovered that there 
was the least doubt or question of the legality or 
propriety of choosing non-residents to be members 
of the Corporation at the time of granting that 
charter, or at any other time previous to the year 
1722. 



It must also be stated, that in 1780, when the 
Corporation was formally confirmed by the Con- 
stitution of the Commonwealth, only one of the 
five Fellows was resident at the College, and that 
numerous acts of the Legislature, both before and 
since that time, have recognized the existence of 
this Corporation. 

The Committee are of opinion that the claim of 
the Memorialists being repugnant to an usage thus 
uninterrupted and thus sanctioned, cannot be sus- 
tained, and that any citizen of this Commonwealth 
may lawfully be made and continue a member of 
the Corporation, whether resident at the College, 
or not. 

There is however one authority cited in the Me- 
morial too important to pass without further notice, 
though even if unexplained, it could not prevail 
against the considerations, which have been stated. 
The Committee allude to the opinion repeatedly ex- 
pressed by the House of Representatives in their 
votes passed in the years 1722 and 1723, an opinion 
adopted at first by the Council also, but subsequent- 
ly abandoned by them, after a full hearing of both 
the parties. This opinion may perhaps be account- 
ed for by the circumstance that at that time and 
previously the title of Fellows was given not only to 
the members of the Corporation, but to all the 
Tutors whether members of that body or not. 
Some distinguishing epithet was often added to de- 
2 



10 

note in which of these senses the terra was used ; 
but this was frequently omitted when from the con- 
text, or from the nature of the case, no mistake was 
apprehended. 

The term Fellows appears to have been introduc- 
ed here about the year 1647, three years before the 
Charter, and then to have denoted a person chosen 
from among the graduates, who should give instruc- 
tion to the students committed to his care, and 
receive a stipend. After the Charter it was used in 
the same sense, and applied to such Instructers, as 
well as to the members of the Corporation, some- 
times with and sometimes without an additional 
epithet for the purpose of discrimination. 

From the records of the College it is found that 
in the year 1666 it was ordered, that such as were 
" Fellows of the College, and had salaries paid them 
out of the Treasury, should constantly reside, lodge, 
and have their studies in the College." In the next 
year a Probationer Fellow was chosen, and the junior 
class committed to his care. In 1669 grants differ- 
ing in amount were made to the Senior, Second and 
Third Fellows, In 1677 the Overseers recommend- 
ed to the Corporation to choose another Fellow to 
officiate in the room and stead of the Reverend 
Mr. Shepherd, of Charlestown, deceased, and one 
to officiate in the place, if they judged it needful. 
Soon afterwards the Corporation chose the Reve- 
rend Mr. Sherman, Pastor of the Church in Water- 



II 

town, a Fellow of the College, and member of the 
Corporation, and Mr. Isaac Foster, a Probationer, 
to take charge of the Sophomores. Between 1682 
and 1692, the same individuals are designated at dif- 
ferent times in the records, as "the resident Fellows " 
" the Fellows on the place" " the Fellows of the Col- 
lege" " the present Felloics" " the Fellows" and " the 
Tutors" and salaries assigned to them under each of 
these various appellations. But during almost the 
whole of this period, it appears that there were not 
more than two such Fellows receiving salaries in the 
College at the same time. In June 1690 and after- 
wards, we find the phrase Fellows of the Corporation. 
The College records for the first forty years are 
exceedingly imperfect. They shew however, and 
this circumstance increases the confusion arising 
from these different applications of the same term, 
that the Fellows receiving a salary, resident Fel- 
lows, or Fellows on the place, as the same indivi- 
duals are indifferently styled, were, at least some of 
them, at the same time members of the Corpora- 
tion ; but it does not appear in the records that all 
of them were so. 

A letter written from Boston, October 12, 1676, 
to the Lords of the Privy Council, by Edward 
Randolph, who was sent out by King Charles the 
Second, to examine into the state of the Colonies, 
seems to shew that all the resident Fellows were 
not then members of the Corporation. In answer- 



' 



12 

ing the enquiry which he was instructed to make in 
regard to the actual condition of the University, he 
says, " There are but four Fellowships, the two 
Seniors have each 30/. per annum, and the two 
juniors 15/. These are Tutors to all such as are 
admitted students." Now at that period and for 
some time previous, three of the five Fellows of the 
Corporation were settled clergymen, Mr. Oakes of 
Cambridge, Mr. Shepherd of Charlestown, and Mr. 
Mather of Boston, so that only two of the Fellows 
mentioned by Randolph could possibly have belong- 
ed to the Corporation. 

Between the years 1692 and 1700 four different 
acts for altering the organization of the College 
were passed in both branches of the Legislature, 
and though they were not finally established, one of 
them not being approved by the Governor, and the 
others being successively disallowed by the King, 
yet they and the votes passed in relation to them, 
may serve to shew how the term Fellow was then 
used and understood. The number of persons in- 
corporated by these acts besides the President, 
Vice President and Treasurer, varied from eight to 
fifteen ; not more than two in any case being resi- 
dent at the College. In each act these persons 
were incorporated as in the Charter of 1650, by 
the appellation of Fellows ; and in each, as in that, 
there was a provision that the corporate property 
should be managed " for the use and behoof," or 






13 

" for the encouragement of the President, Fellows, 
Scholars and Officers of the College, and for all 
accommodations of buildings, books," &c. Three of 
these acts contain the expressions, Fellotvs of the 
House, Fellows receiving a salary, Felloics residing at 
the College. In the two last, the persons incorpo- 
rated are repeatedly styled Fellows of the Corpora- 
tion, and it is provided that "no meeting for choos- 
ing any Member or Members of the Corporation, 
Fellows of the House, or making bye laws," &c. be 
holden without written notice. It appears from the 
records of the General Court, that the persons to 
be incorporated in the year 1700 were chosen by 
concurrent vote of the Council and House, and that 
they both agreed in appointing, "for Fellows'" thir- 
teen persons named " with the two senior resident 
Fellows for the time being." 

In the early part of the last century the records 
of the Corporation and Overseers continually apply 
the term Fellows to the members of the Corpora- 
tion and also to the Tutors, whether members of 
it or not. When it was wished to denote in which 
sense the word was used, the former were usually 
styled Fellows of the Corporation ; the latter for the 
first ten or twelve years resident Fellows, and subse- 
quently for a like period Fellows of the House. Af- 
ter that time they are in these records generally 
called Tutors. But in the records of the Immediate 
Government and in the Treasurers accounts, the 



14 

term Fellows was applied to the Tutors, many of 
whom neither were nor pretended to be members of 
the Corporation, a few ye'ars longer ; and it appears 
to have been used by the Tutors themselves, till 
within about sixty years. 

The ambiguity arising from this use of the same 
word in different senses, may probably be deemed 
the origin of the votes passed by the Legislature in 
in 1722 and 1723; and of the claim then urged and 
now repeated. It should be remarked however 
that though the Tutors, not members of the Corpo- 
ration, were thus called Fellows, this term was never 
applied in the same way to the Professors, and that 
therefore the general reasoning in the Memorial 
seems to have no application whatever to them, but 
their claim to any peculiar right must rest entirely 
on those votes, unsupported by any other argument 
or authoritv. 

The Memorial represents also, that it is expedi- 
ent for the interest of the University that all the 
Fellows of the Corporation should be resident Instruc- 
ted. As the Corporation and Overseers, if they 
entertain the same opinion, may bring about this 
change by electing none but resident Instructers to 
be members of the Corporation hereafter, it may 
be expected that this point also should be taken into 
consideration. The Committee have considered it, 
and waiving the question, whether it would not be 
of dangerous tendency to grant this privilege as a 



15 

favour, while it is claimed as a right ; wouid simply 
remark, that all the Instructers are appointed, and 
are removeable, and that their duties are prescribed, 
their compensation fixed and their conduct regulated, 
only by the vote of the Corporation, in concur- 
rence with that of this Board, and that consequent- 
ly if they composed the whole Corporation, no act 
touching them could be passed without their own 
consent, and thus though they would not have un- 
limited power, they would in effect be exempted 
from all responsibility and control. 

The Committee therefore conclude that it is not 
expedient to adopt any plan for changing the actual 
organization of the College in the manner request- 
ed by the Memorialists. 

All which is respectfully submitted, 

By order of the Committee. 

Aa. hill. 



3*1 tutorial 



TO THE 



REVEREND AND HONOURABLE 



THE 



mttmtv* of Plsvfww Uuitevnitn, 



AT CAMBRIDGE, 



THE RESPECTFUL MEMORIAL OF 



HENRY WARE, 
LEVI HEDGE, 
JOHN S. POPKIN, 
SIDNEY WILLARD, 
JOHN FARRAR, 
ANDREWS NORTON, 
EDWARD EVERETT, J 
GEORGE OTIS 
JAMES HAYWARD 



^•PROFESSORS, 



ARD, S 



TUTORS, 






CAMBRIDGE, MAY 31, 1824. 

To the Reverend and Honourable the Overseers of the University, 
at Cambridge, 

J. he Subscribers beg leave respectfully to represent that, on 
the 2d of April last, they presented to the Corporation a docu- 
ment, of which a printed copy is here subjoined, and which 
they request to have considered as a part of this their Memorial 
to your reverend and honourable body. The object of said docu- 
ment is to show, that, by the Charter of the University, the Fel- 
lows of the University are required to be Resident Instructers. 
For the arguments and considerations, by which this statement 
is supported, the subscribers beg leave to refer to the document 
itself. — To this application no formal answer has been received 
from the Corporation ; but it has been intimated to the subscri- 
bers, by the President, that the Corporation feel themselves in 
this dilemma, viz : — that if they elect to the existing vacancy in 
their board, one of the resident instructers, they admit the claim 
of the latter, as set forth in the Memorial to be well founded ; 
but if this claim be well founded, the members of the Corpora- 
tion, not being rightfully fellows of the College, are not compe- 
tent to perform any act in its government, and can only resign 
their seats. 

In this opinion of the Corporation, communicated by the 
President, that body appears to decline a jurisdiction of the case, 
except in the assumption that our claim is groundless. If it be 
well founded, they consider themselves as possessing no power 
to carry it into effect. This consideration has made it necessa- 
ry for us to apply to your reverend and honourable body, as a 



20 

Board of College Government possessing powers not called in 
question by our claim, and therefore alike able to act upon it, 
whether it be allowed or not. We have taken the present oppor- 
tunity of respectfully presenting it to your consideration, not 
only because we understand your reverend and honourable body 
to be now engaged in considering important measures, relative 
to the organization of the College ; but because we are fearful 
lest, by private and inofficial channels, our application may 
come before you under circumstances to prevent its being im- 
partially weighed, and thus the minds of your reverend and 
honourable board be preoccupied on the subject. 

In the document alluded to and here subjoined, the subscri- 
bers think they have firmly established the proposition, which 
was enacted in the form of a legislative resolution, by every 
branch of the General Court, in 1723, " that it was the intent of 
the Charter, that the Tutors of the College, or such as have 
the instruction and government of the Students, should be fel- 
lows and members of the Corporation ; provided they exceed 
not five in number." At the same time, we beg leave to state, 
that, as a mere matter oj right, we never should have brought 
forward the claim, had we not at the same time believed that 
the exercise of this right is essential to the welfare of the Uni- 
versity, and that the gradual introduction of a third body be- 
tween the Overseers and the immediate government, necessari- 
ly possessing a limited acquaintance with the College affairs, and 
yet charged with its administration, is highly prejudicial to 
its interests. The subscribers feel flattered in observing, 
what they think a confirmation of this sentiment, in section No. 
9, of the report of Mr. Justice Story, now, as we understand be- 
fore your reverend and honourable body. It is there most justly 
stated, that " there is an absolute necessity of making the Board 
of Overseers an active and efficient agent in the concerns of the 
University." Towards the close of the subjoined document, the 
subscribers have ventured to express the same opinion, with 



21 

the remark, that this could in no way so effectually be brought 
about, as by restoring the University to its original constitution, 
and removing from between the Overseers and the immediate 
Government a third Non-Resident Board, which has nearly un- 
dermined the two others ; and while it has taken from the im- 
mediate Government its responsible powers and its most valua- 
ble privileges, has almost rendered nugatory the functions of 
the Overseers ; — originally the sole and long the principal board 
of College authority. 

The subscribers beg leave for a moment to ask your atten- 
tion to the above mentioned dilemma, in which the Corporation 
esteem themselves to be placed, with respect to our application, 
which precludes their taking any order not predicated on the 
groundlessness of our claim. We need not say that it had by 
no means escaped us — (on the contrary it was intimated in the 
first sketch of our memorial) — that, if our claim were well 
grounded, the Corporation could in strictness afford no farther 
relief to the evil, than that of vacating their seats. At the same 
time, however we reflected that a full remedy must exist some- 
where. The Charter provides no remedy in the certainly pos- 
sible case of the election of persons to the Corporation, who 
should afterwards appear not competent to be elected. While 
we supposed, on the one hand, that this was not a misuser so 
fatal as to destroy the Charter, we imagined, on the other hand, 
that the Corporation, actually in possession of the trust at the 
time the misuser should be first effectually discovered, might be 
an extremely proper body to administer the remedy; not by 
any specific right, but by the vis Conservatrix of a great Institu- 
tion, which must not be permitted to perish, because an unfore- 
seen irregularity has crept into its administration. 

Having already observed that we should not have brought 
forward this claim as a matter of right, had we not also at the 
same time considered it a matter of high expedience, we may 
add that on this ground, we had hoped that the Corporation 



22 

would have been able to meet us ; in which case, without com- 
mitting themselves as to the legal claim, they would have been 
able, on the ground of expediency alone, to restore the College 
to what we conceive its chartered form. Though no one of 
the officers of instruction has for eighteen years been thought 
worthy of a place in the Corporation, yet being of course eligi- 
ble, the Corporation might by choosing one of their number to 
fill the vacancy, which has now existed more than twelve 
months, have settled the present controversy, without commit- 
ting themselves as to their supposed rights. The College re- 
cords furnish precedents of such a procedure on the part of the 
Corporation, of which two are quoted in the subjoined docu- 
ment. 

Under these circumstances, we trusted that the Corporation 
would see the force of what convinced us, and acknowledging 
either the validity of our claim or the expediency of introducing 
into their board persons possessed of that acquaintance with 
College affairs, which can hardly be looked for except among 
the Instructers, would proceed to fill the vacancy, according to 
our understanding of the charter, and the solemn exposition of 
it, by the constituted authorities of the province in 1723; and 
thus, as successive vacancies might occur, repair the evil in a 
quiet and gradual way, and save the unpleasant consequences of 
public discussion. Such a course we should have esteemed the 
safest and most conducive to the welfare of the University. 
Since, however, the Corporation have communicated to us their 
view of the legal dilemma, in which they stand, we have thought 
it our duty and privilege to bring the subject before your re- 
verend and honourable board, and to request your aid, as the 
highest branch of its government, in restoring this Institution to 
what we esteem the only form consistent with its venerable 
Charter. 

With this view, we have ventured to lay before you a copy 
of our address to the Corporation, begging your reverend and 



23 

honourable body to accept it as a part of our memorial to you at 
this time, and to furnish us with an opportunity of explaining 
and defending it, when it shall come to be weighed and acted 
upon. 

All which is respectfully submitted, in behalf and by order of 
the subscribers to the subjoined document,* by 

HENRY WARE, 
LEVI HEDGE, 
EDWARD EVERETT. 



* Note. We beg leave to state" that Mr. Professor Stearns has observed to 
us, that, not being concerned in the immediate government and instruction of 
the College, he esteems himself not strongly interested in this subject, and de- 
clines joining us in this address ; and that Mr. Tutor Wood, in consequence 
of absence from Cambridge, could not be consulted. 



OO" The document subjoined to this memorial and referred to as 
part of it, has already been printed and placed in the hands of the 
Members of the Board of Overseers. 



LIBRARY OF CONGRESS 



029 892 549 7 



